Mayham v. Allen — 19 N.Y. St. Rep. 811

Majority

p. 811

Ralph Mayham, as Overseer of the Poor of the Town of Jefferson, Schoharie County, Resp’t, v. Ira H. Allen, App’lt.

(Supreme Court, General Term, Third Department,

Filed November 20, 1888.)

Headnote

1. Costs—In bastardy proceedings—What to be allowed—Code Crik. Pro., §§ 850-873—Code Civ. Pro., § 3073.

In bastardy proceedings tbe court must award costs to tbe party in whose favor an appeal is determined. Code Crim. Pro., § 873. By this section the justices are, in a certain case, to certify the reasonable costs, and it would seem that the reasonable costs included an attorney’s fees.

2. Same—Am:ount to be allowed.

Where defendant was held by an order of filiation made by two justices, and he appealed to the court of sessions, which court vacated tlie order, and held defendant to trial on the merits; and on the trial of fact the defendant was held not to be the father of the child, and judgment for him was granted, with costs, it seems that' the proceeding is analogous to an appeal from a justices’ court, and a new trial in the county court, and that the costs provided in Code Civ. Pro., § 3073, should govern.

Appeal to the general term from an order made by the Schoharie county court of sessions denying defendant’s motion for a retaxation of his costs. Defendant was arrested in bastardy proceedings, and tried before two justices of the town of Jefferson, who held him, and signed an order of filiation. Prom this order the defendant appealed to the court of sessions of Schoharie county, where an order was made vacating and quashing such order of .filiation as illegal and void. Thereupon the court held the defendant to a trial upon the merits, and upon such trial the proceedings were dismissed with costs against the plaintiff, Overseer. The defendant’s attorney prepared a bill of costs as in an ordinary action, in the supreme court, with the disbursements, and served with notice of adjustment. The clerk taxed the disbursements, and struck out the items of costs under the Code ; before notice, after notice, and trial fee. Judgment was entered up by the clerk, and in the absence of defendant’s attorney on the same day, and the costs, as taxed, inserted therein. On learning what the clerk had done, defendant’s attorney at once saw plaintiff’s attorney and proposed to have the question of what costs were taxable presented to the court, repudiating the act of the clerk, and upon failing to have any arrangement made, soon thereafter prepared and served a new bill of costs with notice. The clerk decided, under plaintiff’s objection, that he had no further authority in the premises. The defendant’s attorney then appealed to the court of sessions, of Schorarie county, by motion for a re-taxation. This motion was made for the first term of said Court after the trial was had. The court of sessions denied

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the motion without costs. And from this order the defendant appeals to this court.

M. S. Wilcox, for app’lt; C. E. Nichols, for resp’t.

The court must award costs to the party in whose favor an appeal is determined. Crim. Code, § 873.

Costs are not defined in this Code; probably because in most matters treated of, there are no costs. Bastardy proceedings are the exception. By section 850, Criminal Code, the justices are, in a certain case, to certify the reasonable costs. It would seem that these costs included an attorney’s fees. Neary v. Robinson, 98 N. Y., 81 .

In Superintendents of Poor v. Moore ( 12 Wend., 273 ), similar language in the Bevised Statutes was held to mean taxable costs. We think that is the proper meaning here. What, then, should the costs be ?

The defendant was held by an order of filiation made by two justices. He appealed to the court of sessions. That court vacated the order and held defendant to trial on the merits. On the trial of fact the defendant was held not to be the father of the child, and judgment for him was granted, with costs.

Now, it seenis to us that this proceeding is most analogous to an appeal from a justice’s court and a new trial in the county court, and that the costs provided in Code Civil Procedure, section 3073, should govern. It is held in substance that this is a civil proceeding (Rivenburgh v. Henness, 4 Lans., 208 ), and, therefore, we may well adopt the provisions of this section.

The plaintiff objects that defendant taxed his costs and entered judgment, and therefore cannot now have relief. The so-called costs were only disbursements, and ‘it does not appear that the defendant entered the judgment. If the clerk entered it without defendant’s direction, the defendant should not be prejudiced.

The plaintiff also objects that the bill of costs first presented to the clerk did not contain items according to section 3073. But the clerk did not take the ground that other items should be allowed, but rejected costs other than disbursements altogether.

We think, therefore, that the order of the court of sessions appealed from should be reversed, with ten dollars costs and printing disbursements, and that the motion for "re-taxation by the clerk, in accordance with the views above expressed, should be granted, with ten dollars costs.

Landon and Ingalls, JJ., concur.